HC: Advocates entitled to appear in maintenance Tribunals u/s 30 of Advocates act, Bar On Legal Representation Unconstitutional. [Read Judgment]



 The Kerala High Court recently comprising of a bench of Chief Justice S Manikumar and Justice Shaji P Chaly has declared unconstitutional the bar on Advocates representing parties before Maintenance Tribunals formed under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. (K. G. Suresh & Ors Vs Union Of India & Ors)

The Bench observed that by Section 30 of the Advocates Act, the restriction is taken away. Under such circumstances, Article 19 that guarantees the freedom to practice the profession of choice, enables lawyers to appear before all Tribunals and Courts, subject to Section 34 of the Advocates Act.

Facts of the case

The petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.

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Contention of the Parties

The Petitioner has stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.

 Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.

The Union of India, represented by the Secretary, Ministry of Social Justice and Empowerment, respondent No.1, has filed a statement, denying all the averments and allegations made by the petitioner in the writ petition.


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Further stated that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of harassment for the parents in their last phase of life as judgment will be delayed, which is wholly unacceptable.

Court Observation & Judgment

The Court after taking the submissions into consideration held “As rightly contended by the learned counsel for the Bar Council of India, Maintenance and Welfare of Parents and Senior Citizens Act, 2007 came into force on 24.09.2008 in the State of Kerala, whereas, Section 30 of the Advocates Act, 1961 has been notified on 15.06.2011. Therefore, the latter enactment has an overriding effect on Section 17 of the 2007 Act.”

The bench accepting the submissions advanced by the petitioner's counsel as well as the Bar Council, pointed out that the Tribunals are clothed with the powers of Civil Courts, to take evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary, to be produced.

The Court effectively held, allowing legal advice alone would not suffice.


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The Court connecting the same the right to legal aid underscored that legal assistance in maintenance matters “cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”

It was stated in this respect, “Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”

The court Rejected the Contention of the Union of India, the court noted,

“Contention of the Union of India that since the main intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide speedy and cost effective mechanism to the parents/senior citizens, to claim maintenance from their children/grandchildren/relatives, as the case may be, and participation of advocates in the proceedings will jeopardize this objective, cannot be accepted, for the reason that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.”

On the question of whether engaging a lawyer would hamper the cost effectiveness envisaged by the legislation, the Court underscored that this could not be countenanced either because the Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, would come to the aid of such litigant, by engaging a lawyer to assist him.


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The Bench addressed the Union of India by remarking, “…Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates.”

Further submissions that the Maintenance Act sought that disputes and differences be resolved amicably and that the Tribunal would nominate Conciliation officers for this purpose was also rejected.

The Court opined, “He (the Conciliation Officer) will not be a substitute for a lawyer.”

The bench remarked, “engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable”.


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By allowing the petition court held that:“As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals…In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007.”

The petition was allowed with a declaration that the petitioner be allowed to practise in maintenance tribunals/other for a under the Maintenance Act, 2007.


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